Mahesha vs Radhavendra Kharvi and Others

N.K. Patil, J.

This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 21/04/2014, passed in MVC No. 347/2012, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Kundapura, (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 14,22,500/- awarded by the Tribunal with interest at 6% p.a, on Rs. 13,52,500/- (excluding future medical expenses) from the date of petition till the date of deposit, as against the claim of Rs. 30,00,000/-, on account of the injuries sustained by him in the road traffic accident is inadequate.

In brief, the facts of the case are:

"The appellant claims to be aged about 27 years at the time of the accident. He was hale and healthy prior to the accident, Driver of heavy vehicle by profession and earning Rs. 9,000/- per month. That on 10.1.2012 at about 3.30 p.m. appellant was working as an additional driver/conductor/cleaner/loader and unloader in a Fish Loaded Lorry bearing Reg. No. KA.20.B.8518 driven by another driver with high speed in a rash and negligent manner from Gangolli side towards Malpe side, when the said lorry came near Shankaranarayana Temple, Kodavoor village, Udupi Taluk, lost control over the same and it fell on the road. Due to which, appellant sustained injuries. Immediately, he was shifted to KMC Hospital, Manipal, then he was shifted to Thejaswinin Hospital, Mangalore for better treatment, where he took treatment as inpatient, underwent two surgeries, his left hand below elbow removed and he has undergone surgery to his urine bladder and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment."

It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. The Doctor has assessed the physical disability at 85% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 14,22,500/- as compensation under different heads with interest at 6% p.a, on Rs. 13,52,500/- from the date of petition till the date of deposit.

Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for appellant and learned counsel appearing for second respondent-Insurer.

The submission of the learned counsel appearing for appellant, at the outset is that, the Tribunal has erred in assessing the income of the appellant at Rs. 6,000/- per month which is on the lower side and is liable to be re-assessed, on the ground that, appellant was a driver of a heavy vehicle and therefore, the Tribunal ought to have assessed his income atleast at Rs. 7,000/- to Rs. 8,000/- per month. He further submits that, on account of the injuries sustained by the appellant in the accident, his left upper limb was amputated. The Tribunal has erred in assessing the permanent disability at 80% contrary to the evidence of the Doctor, who after clinical examination has assessed the physical disability at 85%. Therefore, he submitted that the percentage of disability assessed by the Doctor may be accepted. Further, he submits that on account of the injuries sustained by the appellant, he has taken treatment as inpatient for 62 days, spent reasonable amount towards medical expenses, conveyance and other incidental charges and on the advise of the Doctor, he might have taken bed rest and follow up treatment for more than ten months, discomforts and unhappiness persists through out his life and it would affect his earning capacity as he was a driver of a heavy vehicle and now he is not in a position to do his work as he was doing earlier and he requires some amount towards future medical expenses for purchase of artificial limb including incidental expenses. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Further, he submits that the rate of interest awarded by the Tribunal at 6% p.a., is on the lower side and is liable to be enhanced since the accident is of the year 2012. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for insurer, inter alia, sought to substantiate that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.

After careful consideration of the submissions made by learned counsel appearing for both the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

"Whether the compensation awarded by the Tribunal is just and reasonable?"

The occurrence of the accident and the resultant injuries sustained by the appellant as per Ex. P3-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 27 years, Driver of a heavy vehicle by profession and on account of the grievous injuries sustained by him, his left hand below elbow was removed and he has undergone surgery to his urine bladder, and now he is not in a position to do his work. As per the evidence of the PW2- Doctor, appellant suffers from permanent physical disability at 85% to the whole body and stated that he cannot do his work as a driver. Further, PW2 in the cross examination has stated that, left hand below elbow of the appellant is completely removed. It is the case of the appellant that, he has suffered urethral injuries, undergone urethroplasty and the said injuries affect his marital life. Having regard to the nature of injuries sustained by the appellant as there is an amputation of left hand, the Tribunal has justified in assessing the permanent disability to the whole body at 80% instead of 85% assessed by the Doctor and we accept the same. Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity. Further, the Tribunal has assessed the income of the appellant at Rs. 6,000/- per month which is on the lower side and it needs to be re-assessed. Having regard to the age, occupation of the appellant and year of the accident, we re-assess his income at Rs. 7,500/- per month to meet the ends of justice. The proper multiplier applicable would be ''17'' as rightly adopted by the Tribunal since the appellant was aged about 27 years as on the date of the accident and we accept the same.

Further, it emerges that, during the course of treatment, appellant might have undergone pain and agony, he might have sustained financial loss, as he could not have attended his work regularly and the disability is permanent in nature and as there was an amputation of left hand below elbow, he has to replace the artificial limb and for that he may require some amount including incidental charges. Taking all these aspects into consideration, we award a sum of Rs. 1,50,000/- towards injury, pain and suffering instead of Rs. 80,000/-, Rs. 75,000/- towards loss of income during the period of treatment for ten months at the rate of Rs. 7,500/- per month instead of Rs. 60,000/-; Rs. 2,00,000/- towards medical expenses, including conveyance, nourishing food and attendant charges instead of Rs. 1,93,300/-, Rs. 1,00,000/- towards loss of amenities, discomforts and unhappiness instead of Rs. 40,000/-, Rs. 12,24,000/- ( Rs. 7,500 x 12 x 17 x 80%) towards loss of future earnings instead of Rs. 9,79,200/-, Rs. 70,000/- towards future medical expenses including purchase of artificial limb.

In all, the appellant is entitled to the total compensation of Rs. 18,99,000/- instead of Rs. 14,22,500/- and the break- up is as follows:

Further, it is the submission of the learned counsel appearing for the appellant that, the rate of interest awarded by the Tribunal at 6% p.a, from the date of petition till its deposit is on the lower side and is liable to be enhanced as the accident is of the year 2012. We find some substance in the said submission. Therefore, in the light of the judgment of Apex Court and this Court we award the rate of interest at 9% per annum on the enhanced compensation.

Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 21/04/2014, passed in MVC No. 347/2012, by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Kundapura, stands modified, awarding the compensation of Rs. 18,99,000/- instead of Rs. 14,22,500/-. There would be an enhancement of Rs. 4,76,500/- with interest at 9% p.a., since the accident is of the year 2012 from the date of petition till its realization.

The second respondent-Insurer is directed to deposit the enhanced compensation of Rs. 4,76,500/- with interest at 9% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 4,76,500/-, a sum of Rs. 3,50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 10 years and renewable by another 10 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.

The remaining sum of Rs. 1,26,500/- with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.

In view of disposal of main matter, the relief sought by the appellant in I.A. No. 1/2015 does not survive for consideration. Hence, it is disposed off as having become infructuous.